Citation NR: 9732455
Decision Date: 09/24/97 Archive Date: 09/29/97
DOCKET NO. 96-65 078 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for glaucoma.
2. Entitlement to service connection for depression as
secondary to impotency.
3. Entitlement to service connection for right foot pain
secondary to a left above-the-knee amputation.
4. Entitlement to service connection for degenerative
arthritis of the right knee secondary to a left above-the-
knee amputation.
5. Entitlement to an increased evaluation for chronic low
back strain with arthritis, currently evaluated as 10 percent
disabling.
6. Entitlement to an increased (compensable) evaluation for
a right hip condition, currently evaluated as noncompensably
disabling.
7. Entitlement to an increased (compensable) evaluation for
a left hip condition, currently evaluated as noncompensably
disabling.
8. Entitlement to an increased (compensable) evaluation for
impotency, currently evaluated as noncompensably disabling.
9. Entitlement to special monthly compensation based on the
loss of use of a creative organ.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jeffrey D. Parker, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1963 to
October 1965.
This appeal arose from rating decisions in September 1995,
December 1995, October 1996, and November 1996 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
The issues of an increased evaluation for impotency and for
special monthly compensation based on the loss of use of a
creative organ are addressed in the remand portion of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has glaucoma, which is either
causally related to a loss of blood in service or is
secondary to his service-connected hypertension; that he has
depression secondary to his service-connected impotency; and
that, secondary to left above-the-knee amputation, he has
right foot “problems,” to include right foot pain, as well as
degenerative arthritis of the right knee. The veteran
further contends that his low back strain with arthritis and
right and left hip conditions are more disabling than the
current evaluations reflect.
DECISIONS OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, the
decisions of the Board are that: the veteran has not
presented well-grounded claims for service connection for
glaucoma, depression as secondary to impotency, and right
foot pain as secondary to left foot amputation; that new and
material evidence has been submitted to reopen a claim of
entitlement to service connection for degenerative arthritis
of the right knee secondary to a left above-the-knee
amputation, and that the record supports an allowance of
service connection for degenerative arthritis of the right
knee secondary to a left above-the-knee amputation; that
after resolving reasonable doubt in the veteran’s favor, a 20
percent evaluation is warranted for chronic low back strain
with arthritis, and a 10 percent evaluation is warranted for
a right hip disability; that the preponderance of the
evidence is against an increased (compensable) evaluation for
a left hip disability. The issues of an increased evaluation
for impotency and for special monthly compensation based on
the loss of use of a creative organ are addressed in the
remand portion of this decision.
FINDINGS OF FACT
1. There is no competent medical evidence of record to
establish a nexus between the veteran’s currently diagnosed
glaucoma and either an injury or disease in service or the
veteran’s service-connected hypertension.
2. There is no competent medical evidence that the veteran
currently has a disability of depression, or a disability of
the right foot, to include right foot pain.
3. In August 1992, the RO denied entitlement to service
connection for a right knee condition secondary to a left
above-the-knee amputation, finding that the evidence did not
show degenerative joint disease of the right knee, and the
evidence did not support the finding that a left above-the-
knee amputation was the etiology of chondromalacia of the
right knee. The veteran was properly notified of this
decision but did not enter notice of disagreement within one
year thereafter.
4. The evidence received since August 1992 is new and
material, and when viewed in the light of all of the evidence
of record, raises a reasonable possibility of changing the
outcome of the prior decision.
5. Degenerative arthritis of the right knee is causally
related to a left above-the-knee amputation.
6. The evidence of record raises a reasonable doubt as to
whether chronic low back strain with arthritis is primarily
manifested by moderate limitation of motion of the lumbar
spine, as measured by a 20 degree limitation of forward
flexion, a 10 degree limitation of backward extension, a 25
degree limitation of left and right lateral flexion
bilaterally, and a 40 degree limitation of rotation to the
right and left bilaterally.
7. The evidence of record raises a reasonable doubt as to
whether pain associated with the veteran’s right hip
disability is productive of functional limitation of motion
to a degree of 10 percent disabling.
8. A left hip disability is primarily manifested by
limitation of flexion of the thigh to 70 degrees, and no
limitation of extension.
CONCLUSIONS OF LAW
1. The veteran’s claims of entitlement to service-connection
for glaucoma, depression as secondary to impotency, and right
foot pain as secondary to left above-the-knee amputation are
not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The August 1992 decision of the RO, denying the veteran's
claim of entitlement to service connection for a right knee
condition secondary to a service-connected left above-the-
knee amputation, is final. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. § 3.104(a) (1996).
3. Evidence received since the RO’s decision in August 1992
is new and material. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (1996).
4. Degenerative arthritis of the right knee is secondary to
a service-connected left above-the-knee amputation.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303,
3.310(a) (1996).
5. The schedular criteria for a 20 percent evaluation for
chronic low back strain with arthritis have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.40, 4.59, 4.71a, Diagnostic Code 5003 (1996).
6. Pain associated with the veteran’s right hip disability
is productive of functional limitation of motion that is 10
percent disabling. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R.
§§ 4.7, 4.40, 4.71a, Diagnostic Code 5252 (1996).
7. The schedular criteria for a compensable evaluation for a
left hip disability have not been met. 38 U.S.C.A. §§ 1155,
5107; 38 C.F.R. §§ 4.7, 4.40, 4.71a, Diagnostic Code 5252.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service connection
Service-connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
“chronic.” When a chronic disease is shown as such in
service, manifestations of the condition at any later date,
however remote, are service-connected unless clearly
attributable to intercurrent causes. This rule does not mean
that any manifestation in service will permit service-
connection of a condition first shown as a clear-cut clinical
entity at some later date. Continuity of symptomatology is
required where the condition noted during service is not
shown to be chronic or where the diagnosis of chronicity may
be legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service-
connected. When service-connection is established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. 38 C.F.R.
§ 3.310(a).
Where a veteran who served for 90 days or more during a
period of war develops arthritis to a degree of 10 percent or
more within one year from separation from such service, such
disease may be presumed to have been incurred in service even
though there is no evidence of such disease during the period
of service. This presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1996).
Before the Board may address the merits of the veteran’s
claim, however, it must first be established that the claim
is well-grounded. In this regard, a person who submits a
claim for VA benefits shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well-grounded. 38
U.S.C.A. § 5107(a). A well-grounded claim is “a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of [38 U.S.C.A.
§ 5107].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If
the claim is not well-grounded, there is no duty to assist.
Struck v. Brown, 9 Vet.App. 145 (1996).
To establish that a claim for service-connection is well-
grounded, a veteran must demonstrate the incurrence or
aggravation of a disease or injury in service, see Layno v.
Brown, 6 Vet.App. 465, 469 (1994) and Cartright v. Derwinski,
2 Vet.App. 24, 25 (1991); the existence of a current
disability, see Brammer v. Derwinski,
3 Vet.App. 223, 225 (1992) and Rabideau v. Derwinski, 2
Vet.App. 141, 144 (1992); and a nexus between the in-service
injury or disease and the current disability, see Lathan v.
Brown, 7 Vet.App. 359, 365 (1995) and Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). Medical evidence is required to
prove the existence of a current disability and to fulfill
the nexus requirement. Lay or medical evidence, as
appropriate, may be used to substantiate service incurrence.
See Caluza v. Brown,
7 Vet.App. 498, 506 (1995); Layno, 6 Vet.App. at 469. The
truthfulness of evidence for the purpose of determining
whether the veteran’s claims for entitlement to service-
connection are well-grounded, will be presumed, as required
by Robinette v. Brown, 8 Vet.App. 69, 77 (1995), and King v.
Brown, 5 Vet.App. 19, 21 (1993).
A. Service connection for glaucoma
The veteran contends that his glaucoma is either causally
related to a loss of blood in service or, alternatively, is
secondary to his service-connected hypertension. Service
medical records are negative for evidence of increased intra-
ocular pressure, or diagnosis of glaucoma.
In 1992, the veteran was diagnosed with glaucoma. A VA
compensation examination in May 1995 noted that the veteran’s
history included wounds in service involving loss of blood.
Examination revealed no visual field deficit, but some
elevated intra-ocular pressure. The diagnosis was glaucoma
with full visual field. The examiner commented that he could
not say if the previous episode of blood loss in service was
related to the veteran’s glaucoma.
The veteran submitted pages 40-46 from a medical textbook
regarding glaucoma entitled “Factors Determining the
Glaucomatous Optic Nerve Head Damage,” by S.S. Hayreh. The
article stated that there were factors other than raised
intra-ocular pressure which played important roles in the
production of glaucomatous optic nerve head damage. The
article stated that “a large number of risk factors have
been, identified, suspected or postulated by some and denied
by others.” Of the factors listed, the veteran highlighted
the sub-section regarding risk factors entitled systemic
factors, which included high blood pressure and vascular
shock.
He also submitted 4 pages of a medical textbook entitled
Clinical Ophthalmology, (Butterworth and Company Publishers
Ltd. 1984), for the proposition that “[n]on-progressive low-
tension glaucoma is frequently associated with a past history
of sudden and profound systemic hypotension, usually due to
acute blood loss or myocardial infarction. In these
patients, even without therapy, the visual field changes are
usually non-progressive.”
While the VA examiner in May 1995 noted the history of wounds
in service involving loss of blood, and entered a diagnosis
of glaucoma, he was unable to offer an opinion as to whether
the episode of blood loss in service was related to the
veteran’s glaucoma. The medical treatises submitted by the
veteran list many possible causes for glaucoma, one of which
is vascular shock. However, the treatise states that some of
the possible causes “have been identified, suspected or
postulated by some and denied by others.”
Service connection may not be predicated on a resort to such
speculation or remote possibility. 38 C.F.R. § 3.102 (1996);
see Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (service
connection claim not well-grounded where only evidence
supporting the claim was a letter from a physician indicating
that veteran’s death “may or may not” have been averted if
medical personnel could have effectively intubated the
veteran; such evidence held to be speculative); Stegman v.
Derwinski,
3 Vet.App. 228, 230 (1992) (evidence favorable to the
veteran’s claim that does little more than suggest a
possibility that his illnesses might have been caused by
service radiation exposure is insufficient to establish
service connection); Obert v. Brown, 5 Vet.App. 30, 33 (1993)
(physician’s statement that the veteran may have been having
some symptoms of multiple sclerosis for many years prior to
the date of diagnosis deemed speculative); Perman v. Brown,
5 Vet.App. 237, 241 (1993) (an examining physician's opinion
to the effect that he cannot give a “yes” or “no” answer to
the question of whether there is a causal relationship
between emotional stress associated with service-connected
post-traumatic stress disorder and the later development of
hypertension is “non-evidence”).
The Board also notes the veteran’s contention that his
glaucoma is due to his service-connected hypertension. To
establish service connection on a secondary basis, however,
disability must be shown by competent evidence to be due to
or the result of a service-connected disease or injury.
38 C.F.R. § 3.310(a). There is no competent medical evidence
of record that this veteran’s glaucoma was caused by either
vascular shock due to loss of blood in service, or was due to
his service-connected hypertension. The treatises and
medical evidence of record do not provide a nexus between any
in-service injury or disease and the veteran’s current
glaucoma, or between the veteran’s service-connected
hypertension and his glaucoma. See Lathan, 7 Vet.App. at
365; Grottveit, 5 Vet.App. at 93. For these reasons, the
Board finds that the veteran has not provided a well-grounded
claim of entitlement to service connection for glaucoma.
38 U.S.C.A. § 5107(a).
In this regard, the Board notes the veteran’s
representative’s request for an independent medical opinion
regarding a basis for rejecting the veteran’s medical
treatises. As the veteran has not presented a well-grounded
claim, however, the duty to assist the veteran, to include an
additional VA compensation examination or medical opinion,
does not arise. See Slater v. Brown, 9 Vet.App. 240 (1996);
Franzen v. Brown, 9 Vet.App. 235 (1996).
B. Service connection for depression as secondary to
impotency
The veteran contends that he has depression secondary to his
service-connected impotency. Effective to January 1995,
service connection was established for loss of erectile
power, evaluated as noncompensably disabling.
During a VA compensation examination in August 1996, the
veteran complained of depression and long periods of sexual
impotence. The examiner noted that the veteran showed no
problems with psychosis or behavior disorder. Examination
revealed an essentially euthymic mood. The diagnosis was
situational adjustment reaction with depressed mood. The
examiner added that the veteran had sexual impotence
secondary to many years of use of anti-hypertensive
medication, but that he saw no evidence of pathological
depression, and believed the veteran’s reaction to the loss
of sexual potency to be proportional to that loss and did not
represent a clinical depression.
The United States Court of Veterans Appeals (Court) has held
that “[i]n order for the veteran to be awarded a rating for
service-connected [disability], there must be evidence both
of a service-connected disease or injury and a present
disability which is attributable to such disease or injury.”
Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). While the
veteran has been diagnosed with a situational adjustment
reaction with depressed mood, there is no competent medical
evidence of record of a diagnosis of depression, and the
veteran’s subjective belief that he has depression does not
constitute the competent medical evidence of depression
required to establish the presence of a current disability.
For this reason, the Board finds that the veteran has not
presented a well-grounded claim of entitlement to service
connection for depression as secondary to impotency.
38 U.S.C.A. § 5107(a).
C. Service connection for right foot pain secondary to left
leg amputation
Effective to October 1967, service-connection was established
for a above-the-knee amputation, evaluated as 60 percent
disabling. The veteran contends that, as the result of the
left leg amputation, he has developed right foot “problems”
or pain which require the use of special shoes.
During a VA compensation examination in July 1992, the
veteran entered no complaints regarding the right foot, and
no diagnosis was entered. During a VA compensation
examination in August 1996, the veteran reported that since
the prior VA examination in July 1992 he had become much more
active by walking more and being constantly on his feet. He
reported that since becoming more active, he had noticed more
pain in the right foot, with some tingling in the right foot
at times. He reported that he had been followed in an
orthopedic clinic and had worn specially-equipped shoes.
Physical examination of the right foot was negative, and the
veteran did not complain of any pain during the right foot
examination. No diagnosis of right foot disability was
entered.
While the veteran has entered subjective complaints regarding
the right foot, there is no competent medical evidence of a
right foot “disability.” Even assuming, arguendo, that the
veteran’s right foot complaints constituted a disability,
there is no competent medical evidence of a nexus between any
right foot disability and the veteran’s service-connected
left above-the-knee amputation. For these reasons, the Board
finds that the veteran has not presented a well-grounded
claim of entitlement to service connection for right foot
problems, to include right foot pain. 38 U.S.C.A. § 5107(a).
As the foregoing explains the need for competent evidence of
a current disability as well as competent evidence relating
the disorder to the appellant’s active duty service, or a
service-connected disorder, the Board views its discussion as
sufficient to inform the veteran of the elements necessary to
complete his application for service-connection for glaucoma,
depression as secondary to impotency, and right foot pain as
secondary to left foot amputation. Robinette, 8 Vet.App. at
77.
Although the Board considered and handled these claims on
grounds different from that of the RO, which denied the
claims for service-connection for glaucoma, depression as
secondary to impotency, and right foot problems as secondary
to left foot amputation on the merits, the appellant has not
been prejudiced by the decision. This is because, in
assuming that the claims were well-grounded, the RO accorded
the claimant greater consideration than his claims in fact
warranted under the circumstances. Bernard v. Brown, 4
Vet.App. 384, 392-94 (1993). To remand this case to the RO
for consideration of the issue of whether the appellant's
claims are well-grounded would be pointless and, in light of
the law cited above, would not result in a determination
favorable to him. VAOPGCPREC 16-92 (O.G.C. Prec. 16-92); 57
Fed. Reg. 49, 747 (1992).
Finally, the Board considered the doctrine of reasonable
doubt. However, as the veteran's claims for service
connection for glaucoma, depression as secondary to
impotency, and right foot pain as secondary to left foot
amputation do not even cross the threshold of being well-
grounded claims, a weighing of the merits of these claims is
not warranted, and the reasonable doubt doctrine is not for
application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
II. Service connection for degenerative arthritis of the
right knee secondary to left above-the-knee amputation
In August 1992, the RO denied entitlement to service
connection for a right knee condition as secondary to a left
above-the-knee amputation, finding that the evidence did not
show degenerative joint disease of the right knee, and the
evidence did not support the finding that a left above-the-
knee amputation was the etiology of chondromalacia of the
right knee. The veteran was properly notified of this
decision and did not enter notice of disagreement within one
year thereafter. Therefore, this decision became final. 38
U.S.C.A. § 7105; 38 C.F.R. § 3.104(a).
By letter dated in April 1996, the veteran’s representative
requested service connection for the right knee condition, as
secondary to left above-the-knee amputation. He stated that
the veteran had developed arthritis in the right knee joint,
which resulted in limitation of motion and pain upon use.
By rating decision dated in October 1996, the RO, assuming
the issue of service connection for a right knee condition
secondary to left above-the-knee amputation to be a new
issue, proceeded to render a rating decision denying on the
merits service connection for a right knee condition. In
this case, however, there is a prior unappealed rating
decision. A claim may not be reopened and allowed unless new
and material evidence is presented. 38 U.S.C.A. § 7105;
38 C.F.R. § 3.104(a).
The evidence of record in August 1992 at the time of the
prior final disallowance of the veteran's claim reflects
that, during a VA compensation examination in July 1992, the
veteran reported that he had a constant ache in the right
knee with clicking. X-ray examination of the right knee was
negative. The diagnosis was chondromalacia of the right
knee. The examiner offered the opinion that the left above-
the-knee amputation might contribute to knee pain, but may
not be the sole source or reason for the etiology of the
discomfort, but could be a contributing factor. He offered
the opinion that the left above-the-knee amputation might
aggravate the discomfort, or symptoms, but was not the
etiology of the chondromalacia of the right knee.
The additional evidence submitted since the August 1992 RO
rating decision includes a triple phase bone examination
conducted by VA in January 1996, which revealed an abnormal
bone scan with mild degenerative changes of the right knee.
During a VA examination conducted in August 1996, the veteran
reported that since the prior VA examination in July 1992 he
had become much more active by walking more, and that he had
noticed more pain in the right knee. Physical examination of
the right knee revealed no pain or tenderness on palpation.
Extension of the right knee was to 0 degrees, and flexion was
to 125 degrees. Some crepitus was noted, and the veteran
complained of some pain at the patella. The diagnosis was
right knee pain, probably secondary to status post left
above-the-knee amputation.
Based on this evidence, the Board finds that the evidence
received since August 1992 is both new and material. "New"
evidence is that which is not merely cumulative of other
evidence of record. "Material" evidence is that which is
relevant to and probative of the issue at hand, and which
must be of sufficient weight or significance (assuming its
credibility, see generally, Justus v. Principi,
3 Vet.App. 510, 513 (1992)) that there is a reasonable
possibility that the new evidence, when viewed in the context
of all the evidence, both new and old, would change the
outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). See also
Evans v. Brown, 9 Vet.App. 273, 282-283 (1996) (even if
evidence is new and probative, it is not material unless
there is a reasonable possibility in light of all the
evidence of record that the outcome of the claim on the
merits would be changed). Accordingly the veteran’s claim
for service connection for the right knee condition as
secondary to left above-the-knee amputation is reopened and
the veteran’s claim for service connection will be reviewed
by the Board de novo on the merits.
The Board notes that the veteran’s right knee condition,
previously diagnosed as chondromalacia, as the result of
clinical testing, has more recently been diagnosed as mild
degenerative arthritis. While previous examination did not
result in a medical opinion that the right knee condition was
etiologically related to a service-connected left above-the-
knee amputation, the opinion rendered at the July 1992 VA
compensation examination was that, while the left above-the-
knee amputation was not the etiology of the chondromalacia of
the right knee, it might aggravate the discomfort, or
symptoms. In this regard, the Court has held that secondary
service-connection may be granted for the degree to which a
nonservice-connected disorder is aggravated by a service-
connected disorder. Allen v. Brown, 7 Vet.App. 439 (1995).
The August 1996 VA compensation examination specifically
resulted in a medical opinion that right knee pain was
probably secondary to status post left above-the-knee
amputation. This opinion has not been rebutted by the other
medical evidence of record. For these reasons, the Board
finds that service connection is warranted for degenerative
arthritis of the right knee secondary to left above-the-knee
amputation. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303,
3.310(a).
III. Increased evaluations
Disability evaluations are determined by comparing the
veteran’s current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. See 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4 (1996). Where entitlement to
compensation has been established and an increase in the
disability rating is at issue, the present level of
disability is of primary concern. See Francisco v. Brown,
7 Vet.App. 55, 58 (1994). Separate diagnostic codes identify
the various disabilities.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to absence of part, or
all, of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40.
Regarding disability of the joints, inquiry will be directed
to considerations of more or less movement than normal,
weakened movement, excess fatigability, incoordination,
impaired ability to execute skilled movements smoothly, pain
on movement, swelling, deformity, and atrophy of disuse.
38 C.F.R. § 4.45.
With any form of arthritis, painful motion is an important
factor of disability. Facial expression and wincing on
pressure or manipulation, muscle spasm, sciatic neuritis, and
crepitation may be associated with arthritis of the spine.
The intent of the rating schedule is to recognize actually
painful, unstable, or malaligned joints as entitled to at
least the minimum compensable rating for the joint.
38 C.F.R. § 4.59 (1996).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
A. Increased evaluation for chronic low back strain with
arthritis
Effective to May 1982, service connection was established for
chronic low back strain with traumatic arthritis, evaluated
as noncompensably disabling, and evaluated as 10 percent
disabling since April 1992.
During a VA compensation examination in July 1992, the
veteran complained of chronic back pain. X-rays revealed a
questionable narrowing of the disc space width at T12-L1.
The diagnosis was degenerative joint disease of the
lumbosacral spine.
During a VA compensation examination in August 1996, the
veteran complained of chronic low back pain, and pain when
getting up from a lying to a standing position and when
putting on his left leg prosthesis. Physical examination of
the back revealed no tenderness, muscle spasm, or scoliosis.
Ranges of motion showed a forward flexion of 75 degrees,
backward extension of 25 degrees, left and right lateral
flexion of 15 degrees bilaterally, and rotation to the right
and left of 15 degrees bilaterally. The relevant diagnoses
were degenerative joint disease of the lumbosacral spine, and
low back pain secondary to degenerative joint disease of the
lumbosacral spine and status post left above-the-knee
amputation.
Diagnostic Code 5295 provides that for a lumbosacral strain
with characteristic pain on motion, a 10 percent evaluation
is warranted. 38 C.F.R. § 4.71a. In this veteran’s case,
the evidence reflects that he has chronic low back pain and
pain on motion, symptomatology contemplated by a 10 percent
evaluation for lumbosacral strain. However, the evidence
does not demonstrate that the veteran’s chronic low back
strain with arthritis is manifested by muscle spasm on
extreme forward bending, or unilateral loss of lateral spine
motion in the standing position. Therefore, a higher
evaluation under Diagnostic Code 5295 is not warranted.
38 C.F.R. § 4.71a.
In considering whether other rating codes would provide a
higher rating for the veteran’s low back disability, the
Board notes that the veteran’s current diagnosis regarding
the low back is degenerative joint disease of the lumbosacral
spine. Diagnostic Code 5003 specifically provides that
degenerative arthritis established by x-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. 38 C.F.R. § 4.71a. Diagnostic Code 5292 provides
that where there is moderate limitation of motion of the
lumbar spine, a 20 percent evaluation will be assigned.
Where there is slight limitation of motion of the lumbar
spine, a 10 percent evaluation is appropriate. 38 C.F.R.
§ 4.71a.
The evidence reflects that, at the most recent examination in
1996, the measures of range of motion showed about a 20
degree limitation of forward flexion, a 10 degree limitation
of backward extension, a 25 degree limitation of left and
right lateral flexion bilaterally, and a 40 degree limitation
of rotation to the right and left bilaterally. Based on
these measures of limitation of motion, the Board finds this
evidence sufficient to raise a reasonable doubt as to whether
the veteran’s limitation of motion of the lumbar spine is to
a moderate degree. Therefore, resolving such reasonable
doubt in the veteran’s favor, the Board finds that a 20
percent evaluation for the veteran’s chronic low back strain
with arthritis is warranted. 38 C.F.R. §§ 4.7, 4.71a.
B. Increased evaluation for a right hip disability
Effective from April 1992, service connection was established
for a right hip condition of small tissue calcification, and
a left hip condition of loose body with muscle attachment, as
secondary to the veteran’s service-connected left above-the-
knee amputation, and each has been evaluated as
noncompensably disabling. The veteran contends that he has
compensable functional loss of the right and left hips due to
pain.
The evidence reflects that during a VA compensation
examination in July 1992, range of motion testing measured
right hip flexion to 100 degrees, left hip flexion to 90
degrees, right hip abduction to 45 degrees, and left hip
abduction to 60 degrees. The veteran was able to rotate in a
circular fashion at the femoral head and the acetabulum
adequately on each hip.
A report by a private physician, James S. Burke, Jr., M.D.,
dated in November 1995, reflects that the veteran complained
of a two month history of increased snapping around both hips
and denied a history of swelling. He reported that he was
active and did exercises on stair climbers without any
problems. Examination revealed full range of motion of both
hips, no evidence of effusion, and no evidence of snapping
sensation of the right hip upon examination. The examiner
stated his belief that pain in the veteran’s right knee
caused discomfort up into his thigh and hip. X-ray
examination of the pelvis revealed some mild degenerative
changes about the right hip.
In a letter dated a week later in November 1995, Dr. Burke
stated that the veteran reported right hip pain for the
previous 4 to 5 years, and snapping and popping in both hips.
He complained of pain around the right hip that extended to
the right knee. Range of motion of the right hip was
measured to 100 degrees of flexion, and to 30 degrees of
internal rotation. Motion was noted to be painful, and the
veteran reported pain with capsular compression testing of
the right hip. Resisted hip flexion, extension, and
adduction reproduced right hip pain.
During a VA compensation examination in August 1996, the
veteran reported more pain in both hips since becoming more
active. Range of motion testing revealed left hip flexion of
70 degrees, left hip extension of 0 degrees, right hip
flexion of 115 degrees, and right hip extension of 0 degrees.
The examiner noted that the veteran appeared to have
complaints of pain with rotation of the right hip, but voiced
no complaints upon rotation of the left lower extremity
stump. The relevant diagnosis was right hip pain, probably
secondary to status post left above-the-knee amputation.
With regard to the issue of an increased rating for the
veteran’s right hip disability, the evidence shows range of
motion of the right hip of 115 degrees of flexion.
Diagnostic Code 5252 provides that for limitation of flexion
of the thigh to 45 degrees, a 10 percent evaluation is
warranted. 38 C.F.R. § 4.71a, 4.31. The evidence also shows
range of motion of the right hip to 0 degrees of extension.
Diagnostic Code 5251, however, provides for a compensable
evaluation for limitation of extension of the hip limited to
5 degrees. 38 C.F.R. § 4.71a (1996).
The Board notes the representative’s argument on appeal to
the effect that the veteran experiences greater functional
loss due to pain than is represented by a noncompensable
evaluation. In this regard, the Board notes that the veteran
has complained of pain around the right hip, and has some
mild degenerative changes about the right hip. While the
veteran has a good range of motion of the right hip to 115
degrees of flexion, the motion was noted to be painful upon
right hip flexion, extension, and adduction, and an
examination resulted in a medical opinion that the pain in
the veteran’s right knee caused discomfort up into his right
thigh and hip. Based on this evidence, the Board finds that,
due to pain on motion, the veteran’s right hip disability is
productive of a limitation of function to a compensable
degree, but is not more than 10 percent disabling. 38 C.F.R.
§ 4.40; see DeLuca v. Brown, 8 Vet.App. 202, 206-7 (1995).
C. Increased evaluation for a left hip disability
With regard to the veteran’s claim for an increased
evaluation for a left hip disability, the evidence does not
support a finding that the veteran’s left hip disability is
manifested by a compensable limitation of motion. During the
most recent VA compensation examination, left hip flexion was
measured to 70 degrees. Diagnostic Code 5252, however,
provides that a 10 percent evaluation for limitation of
flexion is not warranted unless limitation of flexion of the
thigh is limited to 45 degrees. 38 C.F.R. § 4.71a. Left hip
extension is to 0 degrees. Diagnostic Code 5251, however,
provides for a compensable evaluation only if the extension
of the hip is limited to at least 5 degrees. 38 C.F.R.
§ 4.71a, 4.31.
The evidence does not support a finding that the veteran’s
left hip disability is manifested by a compensable functional
limitation due to pain. Examination by the veteran’s private
physician in 1995 revealed full range of motion of both hips,
no evidence of effusion, and no other clinical findings or
diagnosis regarding the left hip, while at the same time
specifically entering clinical findings and a diagnosis
regarding the right hip. It is notable that during
examination one week later, the veteran presented a history
and complaints regarding the right hip, but no left hip
complaints. Likewise, during a VA compensation examination
in August 1996, while the veteran appeared to have complaints
of pain with rotation of the right hip, he voiced no
complaints upon rotation of the left lower extremity stump.
While the examiner entered a diagnosis of right hip pain, no
diagnosis of left hip pain was entered. For these reasons,
the Board finds that a compensable evaluation for a left hip
disability is not warranted. 38 C.F.R. §§ 4.40, 4.31, 4.71a,
Diagnostic Code 5252.
While the Board has considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
issue of an increased rating for a left hip disability, the
record does not demonstrate an approximate balance of
positive and negative evidence as to warrant the resolution
of this matter on that basis.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1996).
ORDER
The veteran’s claims for service connection for glaucoma,
depression as secondary to impotency, and right foot pain as
secondary to left above-the-knee amputation, having been
found not to be well-grounded, the appeal as to these issues
is denied.
New and material evidence having been submitted, a claim of
entitlement to service-connection for degenerative arthritis
of the right knee secondary to left above-the-knee amputation
is reopened, and service connection for degenerative
arthritis of the right knee secondary to left above-the-knee
amputation is granted.
A 20 percent evaluation for chronic low back strain with
traumatic arthritis is granted, subject to the governing
criteria for the payment of monetary awards.
A 10 percent evaluation for a right hip disability is
granted, subject to the governing criteria for the payment of
monetary awards.
A compensable evaluation for a left hip disability is denied.
REMAND
With regard to the issues of an increased evaluation for
impotency and special monthly compensation based on the loss
of use of a creative organ, the Board finds that further
examination, and acquisition of previous examination results,
are necessary to more accurately evaluate the veteran’s
current level of disability.
Service connection for loss of erectile power secondary to
medication taken for the veteran’s service-connected
hypertension was established, evaluated as noncompensably
disabling from January 1995.
During a VA compensation examination in June 1995, the
examiner noted that no claims file was available. He also
noted that he was going to order a serum testosterone and a
Doppler examination of the penis. The veteran reported a two
year history of progressive difficulty in getting an
erection, and reported a prior testosterone treatment. He
stated that he could still have an erection, though not as
hard as normal, and could penetrate only sporadically.
During a VA compensation examination in August 1996, the
examiner noted that no claims file was available. The
veteran reported that since the previous VA examination he
had not had more than a couple of erections, except for a
couple of times when he stopped taking the blood pressure
pill, and that these erections were only semi-erect and semi-
hard and he was unable to enter for intercourse. The veteran
reported that he underwent a penile Doppler in July 1995.
The veteran stated that he had been seen by a private
urologist in 1995. Physical examination revealed no
tenderness, masses, or penile discharge. Examination of the
prostate showed that it was irregular on the right side. The
diagnoses were impotence and irregular prostate on the right
side. The examiner recommended a prostate-specific antigen
and a urology consultation.
Both of these VA compensation examinations were conducted
without the benefit of the veteran’s claims file. The Board
also notes that the VA examiner both referenced notes from a
urology consultation and ordered a urology consultation,
though no such consultation appears of record. The Court has
held that all of the veteran’s medical records must be
reviewed by the examiner. Culver v. Derwinski, 3 Vet.App.
292 (1992); Shoemaker v. Derwinski, 3 Vet.App. 248 (1992)
(“examiner must have the full medical record of the veteran
prior to making the evaluation”); Green v. Derwinski, 1
Vet.App. 121 (1991) (fulfillment of the statutory duty to
assist “includes the conduct of a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one”). A remand is appropriate to attempt to associate such
findings with the claims file, and for a contemporary
examination based on a thorough history.
In letters dated in 1995, George A. Aldridge, M.D., stated
that the veteran was a patient of his. While Dr. Aldridge
has submitted letters, none of his treatment records have
been associated with the claims file. The Board finds that
the history and clinical findings by this private physician
regarding the veteran’s impotency would assist in determining
the level of disability associated with this veteran’s
service-connected impotency.
The Board finds that the veteran’s claim for special monthly
compensation for loss of use of a creative organ is
inextricably intertwined with the issue of increased
evaluation for impotency. See Hoyer v. Derwinski, 1 Vet.App.
208, 210 (1991). Therefore, a Board decision on this issue
is deferred until the veteran’s impotency has been evaluated.
To ensure that VA has met its duty to assist the appellant in
developing the facts pertinent to the claims, the case is
REMANDED to the RO for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for impotency
since the most recent VA compensation
examination in August 1996. After
securing the necessary release, the RO
should obtain these records.
2. The RO should obtain the urology
report referenced in the August 1996 VA
compensation examination report.
3. The RO should contact Dr. Aldridge
and request from him treatment records
and a statement as to the clinical
findings which formed the basis for his
conclusions in his April 1995 letter.
4. The veteran should be afforded the
appropriate VA examination to ascertain
the nature and severity of his impotency,
or loss of erectile power. This
examination is to be conducted in
accordance with the diagnostic procedures
outlined in the VA Physician’s Guide for
Disability Examinations, and any and all
indicated evaluations, studies, and tests
deemed necessary by the examiners should
be accomplished. The examiners are
requested to report complaints and
clinical findings in detail and
clinically correlate the complaints and
clinical findings to a diagnosed
disorder. The claims folder and a copy of
this REMAND must be provided to and
reviewed by the examiners prior to the
examination.
5. Thereafter, the RO should review the
examination reports to ensure that they
are adequate for rating purposes. If the
examination reports are deficient in any
manner, they must be returned for
corrective action.
Thereafter, if any benefit sought on appeal remains denied,
the veteran and representative should be furnished a
Supplemental Statement of the Case and given the opportunity
to respond thereto. The case should then be returned to the
Board for further appellate consideration, if in order.
By this remand, the Board intimates no opinion, legal or
factual, as to the ultimate disposition of the veteran’s
appeal on these issues. No action is required of the veteran
until he is further notified.
BRUCE KANNEE
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1996).
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